More than two years ago, the largest pandemic of modern times began, caused by SARS-coV-2 (COVID-19). Such a pandemic, in the eyes of many of us, began as something distant, as something that would take months to reach Mexico or that would probably not affect us at all, a thought that changed abruptly in the last days of February 2020, when the first case of COVID-19 in Mexico would be detected.
Shortly thereafter, this virus would lead to the declaration of a worldwide alert by the World Health Organization, and countries would begin to take protective measures for their populations, thus the so-called “quarantine”. Before returning to the new normal, this quarantine forced us to make our homes an office, a school and a place of rest. Our parents and siblings would no longer just be our family, but would also play the roles of teachers, collaborators and playmates.
The quarantine resulted in a number of consequences. As a result, many businesses had to close and many jobs were lost, many others were suspended and, while activities were being resumed, where was the income for basic necessities generated?
It was because of this high need to resume work that two institutions were used. The first one, already provided for by the Federal Labor Law (“LFT”), the “work at home” and one that derived from the pandemic, which was the “Telework”, since January 11, 2021, following an amendment to the LFT.
Both institutions are colloquially referred to as “home office” and are commonly confused, since both, as remunerated and subordinate activities, are carried out by workers who perform their work in places other than the employer’s establishment (where work is usually performed). Notwithstanding this, both figures have distinctive points that we will analyze below.
The first difference is that home work is performed without the immediate supervision and direction of the employer, likewise, the worker can be assisted by members of his family for the performance of his work; on the other hand, teleworking makes use primarily of information and communication technologies precisely so that there is a contact and command between the worker and employer.
As a distinctive point of home work, in addition to what has already been mentioned, the legislator also considered as such the situation in which the employer sells raw materials or objects to his worker or workers, so that the latter transform them at home and later resell them to their employer. This provision makes it possible to recognize the quality of worker to the subject that performs these subordinate and remunerated activities, which does not allow them to be confused with service providers.
Regarding the remuneration of home-based work, the worker has two essential protections in his salary, since the law establishes that these workers cannot be paid less for similar work performed in the company, and in addition, a minimum salary is set for the different home-based jobs by the National Commission of Minimum Wages, taking into consideration market prices, the nature of the work, its quality and the estimated time to perform it.
Teleworking has as another of its distinctive points the time, since if the work is performed less than forty percent of the time at the worker’s home, it cannot be considered as teleworking; also, in case of working in person, in order to change to the teleworking modality, it must be stated that the change is voluntary and must be made in writing.
Now, how does teleworking and telecommuting impact employers?
Home-based work imposes certain obligations on the employer, such as: i) as well as to register in the “Register of Home Work Employers”, ii) provide the employee with a copy of the written working conditions; iii) keep a record book of its home workers; (iv) provide its employees with a foliated and authorized passbook; and v) they must also comply with the special obligations set forth in Article 324 of the LFT, which in a few words establishes that they must fix the wage rates (respecting at all times the protections assigned by law as mentioned above), provide the workers with the materials and tools, and provide the authorities indicated by the LFT with the information requested by them.
Teleworking imposes special obligations on employers, which are set forth in article 330-E of the LFT, such as providing, installing and maintaining the equipment used for teleworking, assuming the costs derived from the work, keeping a record of the supplies delivered to the workers, implementing mechanisms that preserve the security of the information, respecting the right of workers to disconnect, and guaranteeing the training and counseling mechanisms that are necessary to guarantee the adaptation of the workers to the technologies.
In this regard, in the telework modality, NOM-037-STPS-2022 is also applicable to employers and workplaces, which establishes mandatory compliance obligations and some other non-mandatory provisions, and that have rather a character of recommendations, which helps with the determination of safety conditions in the development of teleworking.
After the pandemic, these figures have become more and more useful, because although for many people the modality was complicated at the beginning, it is also true that for many others it gave them a better quality of life. Teleworking and home-based work, in the vast majority of cases, are carried out informally and although they are already regulated, the implementation of the norms for these work modalities is still in its early stages. In conclusion, we can comment that even though the regulation of these figures is little applied by employers and workers, they are used by millions of people in the world, so it is true that they open the way to a new reality.
